Trial Lawyers Association claims impending changes to B.C. court rules unconstitutionally limit expert evidence in motor vehicle actions

BIV's lawsuit of the week

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The Trial Lawyers Association of British Columbia is taking the provincial government to court, claiming impending changes to the Supreme Court Civil Rules set to take effect in 2020 are unconstitutional.

The association and Gregory Crowder, an individual “claimant” in a motor vehicle action, filed a petition in BC Supreme Court on April 17. They claim two orders-in-council amending the court’s rules improperly limit expert-opinion evidence to a maximum of three experts. The rule is set to apply to motor vehicle legal actions limiting parties to a lawsuit to tender expert-opinion evidence “on the issue of damages arising from personal injury or death.”

“The Rule is an unprecedented and profound interference with the court’s control of its process, that will greatly prejudice litigants in cases of even modest factual complexity,” the petition states. The association further claims the rules were “imposed by the government without notice to the bar, substantially for the financial benefit of the Crown corporation auto insurer, the Insurance Corporation of British Columbia [ICBC].”

 By limiting the number of experts, the association claims the rule changes trample on the powers of the superior court while creating “undue hardship for plaintiffs in obtaining access to justice.” The petitioners claim the changes threaten “judicial discretion” allowing a party to introduce expert evidence beyond the new limit. British Columbia’s attorney general announced the rule change amidst financial woes at ICBC, which is expected to see “substantial fiscal savings” through reductions in expenses associated with expert reports and lower awards of damages.

“The sudden introduction of the Rule threatened to massively disrupt the case preparation for, and potential fairness of, vehicle action trials that were near at hand,” the petition states.

Crowder, the other petitioner in the case, has a motor vehicle action trial scheduled for September 2020. Before the rule changes, his counsel had intended to introduce evidence from several experts including a neuropsychologist, a psychiatrist, a neurologist, a dentist, a plastic surgeon, an ophthalmologist and an economist. His injuries, according to the petition, are complex, and the three-expert limit allegedly “makes it impossible for Crowder to discharge his burden of proof on the nature, duration and extent of Crowder’s injuries, and his long-term prognosis, including his long-term function and lifetime care he will need.”

Crowder and the Trial Lawyers Association of BC seek a declaration that the rule changes are unconstitutional and invalid. The petition’s factual basis has not been tested in court and the attorney general of British Columbia had not responded to the claim by press time.